APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
(D.C. Civ. No. 95-cv-00754)
Before: BECKER, ROTH and McKEE, Circuit Judges
Defendant-appellant Kevin Fowler appeals from an order of the United States District Court for the District of New Jersey denying his petition for habeas corpus relief under 28 U.S.C. Section(s) 2255. We are asked to determine if the United States Parole Commission has the authority to impose a new term of special parole under 21 U.S.C. Section(s) 841(c) following revocation of his original special parole term. We conclude that the Parole Commission does maintain jurisdiction over Fowler under Section(s) 841(c), but that the non-incarcerative sanction that it can impose is not special parole, but traditional parole. To the extent that the Parole Commission's regulations at 28 C.F.R. Section(s) 2.52(b) and 2.57(c) allow a contrary result, we hold that they are inconsistent with Section(s) 841(c). Accordingly, we will vacate the judgment of the district court and remand for further proceedings consistent with this opinion.
The facts of this case are not in dispute. On April 21, 1986, defendant-appellant Kevin Fowler was sentenced by the United States District Court for the Southern District of New York to a two-year term of imprisonment for distributing narcotics within 1000 feet of a school. The two-year sentence was to be followed by a six-year term of special parole pursuant to 21 U.S.C. Section(s) 841(c). Fowler was subsequently released from incarceration and began serving his special parole term on May 19, 1990.
On April 23, 1992, the Parole Commission revoked Fowler's special parole based upon his use of drugs, failure to report to his probation officer, and violation of a special drug aftercare condition. The Commission ordered that he receive no credit for time spent on special parole, and that he serve twelve months prior to reparole. The Commission later rescinded this requirement, and instead required service of an additional three months because appellant had escaped from a halfway house.
Fowler was once again released from incarceration and placed on special parole on February 17, 1993. He was to remain under supervision until November 3, 1997. However, on November 16, 1993, the Commission again revoked Fowler's special parole because of continuing drug use, another violation of the drug aftercare condition, and criminal possession of a controlled substance. The Commission ordered that Fowler receive no credit for any of the time he had spent on special parole and that he be reparoled after serving thirty-two months in prison. The decision was affirmed by the National Appeals Board.
On November 2, 1994, Fowler filed a petition for a writ of habeas corpus in the District of New Jersey. He argued that the Parole Commission had no statutory authority under 21 U.S.C. Section(s) 841(c) to impose a second or third term of special parole after it had revoked the initial term in April 1992. Appellant's Brief at 4. On March 17, 1995, the district court ruled that the Commission retained jurisdiction over Fowler after its initial revocation of special parole, and denied Fowler's petition. This appeal followed.
We have jurisdiction pursuant to 28 U.S.C. Section(s) 2255 and 1291. Our standard of review is de novo. See e.g., United States v. Cleary, 46 F.3d 307, 309-10 (3d Cir. 1995) ("The decision whether to grant or ...